The President
stared intently at the television monitor in front of him as he sat back in his chair on
Air Force One.

So this is
one of the men who stand in the way of stability and peace for Afghanistan? he
asked.

Yes
Sir, the National Security Advisor responded. Hes an Iranian by birth,
in charge of most of the rebel elements around the border of the Herat region. Although he
resides in Iran, he has declared himself to be some kind of provisional governor over
Herat, and he refuses to acknowledge the Karzai government. Our intelligence indicates his
army is rather divided; some want to go back to their homes, others want to fightbut
they all follow him like a father.

What about
sending a special envoy? Can we pay him off, maybe persuade him to stand down his army for
peace?

Not likely,
Sir, the Defense Secretary responded. He was indicted last month by the Hague
for war crimes. He allegedly ordered the slaughter of over a thousand civilians last year,
even before the US campaign began. We dont know what this guy did from 7 October
2001 until now. Before he retreated to Iran, he managed to stay alive and in power over
the years by switching sides so many timesfirst the Russians, then the mujahideen,
then the Taliban, and finally pledging loyalty to the Northern Alliance. He has been a
veteran Afghan fighter since 1981. Nothing pins him to al Qaeda, though; hes just a
local menace. There is nothing global.

Well, then
I dont want to risk our troops getting into it with these guys if hes just an
Afghan problem. We dont have enough men in that country if a full

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shooting war
erupts again, and I would rather Karzai deal with it. Can Karzai send troops to take his
army out without another civil war?

Sir,
the Chairman of the Joint Chiefs suggested, this man is our problem, not his army.
If they lose his leadership, they will very likely disband, maybe even join with the new
government, as is the Afghan way. Perhaps our solution should focus on taking him out.
Keep Karzai out of the loop.

I cannot
support what my fellow Cabinet members are suggesting, piped in the Secretary of
State. However, Mr. President, there is no US law preventing you, only an executive
order. But as for international law, and international opinion, thats another story,
Sir. . . .

At certain times throughout our history, the President and
our nation have faced threats to our national interests that have appeared in the form of
one person. A leader of a hostile foreign government, a rogue military officer, or, as
described in the above hypothetical scenario, an intransigent rebel leader sometimes
presents a problem that realistically cannot be solved with the use of cruise missile
diplomacy, discretionary covert opposition training, or negotiation. Action
must be taken, and in our past this has often required the mobilization of large air,
naval, and ground forces to engage and destroy the armies commanded by these threats. Some
of these times, in retrospect, particularly in dealing with totalitarian dictatorships
like Husseins Iraq in 1990 or Noriegas Panama in 1989, the use of massive
military force might have been precluded by the elimination of these solitary figures.

In the above
fictional scenario, the threat is a local one, with regional implications. In real life,
our current threats are aptly titled the Axis of Evil, as identified by
President Bush in his State of the Union address in January 2002. With Saddam
Husseins Iraq the worst of the three named elements of that axis, the focus on
removing the Iraqi threat is paramount. Hussein undoubtedly persists in his efforts to
build nuclear, biological, and chemical weapons of mass destruction. He has used chemical
weapons on his own people and upon his former enemy, Iran. In 1998 Iraq ended the UN
weapons inspection program, and it has violated UN-approved sanctions repeatedly since
1991. In the first year of the Clinton Administration, Husseins intelligence forces
attempted to assassinate former President George H. W. Bush during his visit to Kuwait.
The Czech Republic has confirmed that Iraqi intelligence officers met more than once with
al Qaeda members behind the 11 September 2001 attacks on the United States. While current
international discourse among our skeptical European allies revolves around whether the
United States should engage the forces of Iraq and

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remove Hussein from
power, bipartisan domestic discussions in Washington seemingly already have concluded the
if we should attack debate, and now ponder the when and
how of such an action. An option discarded 30 years ago as too
messy by the politicians of that era may now offer an efficient and decisive
solution to threats posed by rogue states like Husseins Iraq.

The President
currently maintains the power to order such a solution. It is called assassination. In the
wake of the terrorist attacks against the United States on 11 September, assassination
reemerged in the minds of many national policymakers as another possible tool in the war
on terrorism. The security and possibly the survival of the United States may demand that
our Commander-in-Chief not be too squeamish to use it.

Background

Assassination can be
defined as the premeditated and intentional killing of a public figure accomplished
violently and treacherously for a political purpose.1 While no exact definition may prove acceptable to scholars of the
subject, all definitions of the act involve the idea of an illegal killing, a murder of a
specific public figure or leader for a political rather than private purpose.2 The concept of assassination is particularly
dirty in the minds of statesmen in that it involves the use of treacherous
means to kill personsby hiring others to perform the act, by luring persons to their
deaths.3 One definition of assassination has been
that it is the selected killing of an individual by a person not in uniform,
and so it conjures up the idea of hired secret CIA operatives blending into a civilian
population to do their work.4 Assassination as an attempt to influence
another nations leadership, foreign policy, or military capabilities would generally
be considered illegal under the United Nations Charter, unless used as some form of
defensive measure.5

The United States is
alleged to have been a considerable practitioner of assassination in the decades following
the end of World War II until the early 1970s.6
In the early part of the 70s, reports began to filter out that US intelligence and
military operatives had been involved in the assassinations of several foreign leaders.7 The first public renunciations of the use of
assassination as a foreign policy tool came from Richard Helms, then Director of the CIA,
who declared on 6 March 1972 that no such activity or operations be undertaken,
assisted, or suggested by any of our personnel.8

As public knowledge
of these allegations of assassination grew, a congressional committee was convened to
investigate the matter in 1975. The Senate Select Committee to Study Governmental
Operations with Respect to Intelligence Activities, chaired by Senator Frank Church,
investigated the allegations of US involvement in assassinations and attempts on foreign
leaders.9 Through its investigations, the Church
Committee unraveled an intricate process by which US officials had been able to gain
authorization of assassination efforts through plausible denial, in which
subordinates withheld full information from their superiors in order to create a shield
for the chief executive in case of exposure.10
The doctrine

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of plausible
denial, the committee further noted, led to the use of euphemisms and unclear
wordings in instructions to intelligence operatives.11 One result of the doctrine of plausible deniability was that while
the President and other senior government officials were able to deny any knowledge of
activities, the subordinates receiving such orders often became confused as to the nature
and extent to which these orders were to be carried out, often with deadly results for
foreign leaders.12

The Church Committee
made several conclusions as a result of its investigations. It rejected assassination as a
possible foreign policy tool, short of its use in wartime.13 Further, the committee stated that assassination was
incompatible with American principle, international order, and morality.14 The report made significant distinctions, however,
between situations in which the United States was directly involved in plotting and
carrying out an assassination and situations in which the United States responded with aid
to a request by local elements in support of a coup attempt.15 While the report strongly condemned the cold-blooded
intentional targeting of a specific individual leader, it noted that often the support of
a coup attempt is support of the use of violence; as such there is always the risk of
assassination.16 One of the main conclusions made by the
committee was that proponents of a possible assassination, or a coup attempt that might
lead to the death of a nations leader, must consider the likely lasting effect such
actions could have on the overall goals of the United States.17 An effort to replace a leader in a key region might lead
to lasting instability, it might invite reprisals on US leaders, or its disclosure could
embarrass and weaken the United States globally.18 The Church Committee recommended a statutory prohibition be
enacted by Congress to outlaw the use of assassination, but none has been passed into law.19

The first official
US ban on assassination as an instrument of foreign policy was President Gerald
Fords Executive Order 11,905, which stated: No employee of the United States
government shall engage in, or conspire in, political assassination.20 While not the legislation that the Church Committee
recommended, the order did have the force of law upon all individuals operating within the
US government.21 Under the Carter, Reagan, Bush, and
Clinton administrations, the executive order against assassination was adopted and
broadened.22 As currently written, Executive Order
12,333 states:

2.11 Prohibition on
Assassination. No person employed by or acting on behalf of the United States Government
shall engage in, or conspire to engage in, assassination.

2.12 Indirect
Participation. No agency of the intelligence community shall participate in or request any
person to undertake activities forbidden by this order.23

Thus the updated
version of the prohibition prevents the government from going around the technical wording
of the order, perhaps by hiring assassins as independent contractors. The use of an
executive order, rather than calling for legislation, aids the Presidents power in
that it enables him to possess an order far more broad and flexibleand it gives
adversaries pause as to whether it may be reversed if the President is sufficiently
provoked.24

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Skirting the
Ban

Even before 11
September 2001, two members of Congress questioned the continuance of such a ban with
regard to Saddam Hussein and international terrorists. In 1998, Senator Charles S. Robb
stated that if Hussein continued to defy the United Nations, the United States should
consider changing the executive order forbidding the assassination of foreign leaders.25 Robb did not specify how he would change the order,
instead stating that he raised the issue to increase pressure on Saddam Hussein and to
make him feel less secure. Robb later qualified his remarks by stating that he wasnt
suggesting a plan to assassinate Hussein and that the basic prohibition against
assassination is sound.26 On 3 January 2001, Congressman Bob Barr
introduced HR 19, the Terrorist Elimination Act of 2001, a bill that would
legislatively repeal sections of the executive orders specifically prohibiting
assassinations by the US government.27
Although this bill has not become law, it is likely that the Bush Administration has
reviewed and perhaps even secretly adopted its precepts in the wake of 11 September. There
has been considerable discussion over whether President Bush has indeed changed the US
ban, but at present no new executive order has been issued. The exact nature of President
Bushs revisions to this order would almost certainly remain classified under current
circumstances. It is not a great leap of logic to assume that any revision would target
members of al Qaeda; the real question is whether it also would cover Saddam Hussein.

Even if left
unchanged, the current ban on assassination does not bar action against a hostile foreign
leader like Hussein, given the proper circumstances and justifications. As currently
employed, the executive order operates with the force of a congressional statute and is
binding upon the US President.28 Even so, there are four ways in which a
President could legally carry out the assassination of a hostile foreign leader.

The first way would
be for the President to act in the strictest constitutional sense and ask Congress for a
declaration of war against the country of the targeted leader.29 Subsequently the question of assassination would become
one of removing military command and control, and as such would be more easily defensible.30 A
declaration of war against Iraq, not lacking in public support at present, would end the
discussion in terms of the legality of eliminating a hostile foreign leader such as Saddam
Hussein.

A second, more
intricate way of hurdling the executive orders ban on assassination is to
interpret Article 51 of the United Nations Charter as allowing the President to act
against a foreign leader in self-defense or to respond to criminal activities.31Article
51 states, in part:Nothing in the present Charter shall impair the inherent right of
individual or collective self defense if an armed attack occurs against a member of the
United Nations until the Security Council has taken the measures necessary to maintain
international peace and security.32

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The United
States concept of self defense allows for a nation to act (1) against an actual use
of force or hostile act, (2) in a preemptive manner against the imminent use of force, or
(3) against a continuing threat.33
As such, according to US policy, the assassination of a foreign leader may be considered
legal in two situations: when another nation fails in its duty to protect American lives
from violence launched from or originating in its sovereign territory, or when a nation
aids and abets international criminal activities, including terrorism.34

A clear example of
this policy in action occurred with the 1986 air attack against the palace of Libyan
President Muammar Quaddafi. In justifying the use of US bombers to target the Libyan
leader, then White House Legal Advisor Abraham Soafer argued that the attack was legal as
a self-defense measure under Article 51.35
The President, Soafer stated, had the right to strike back to prevent future
attacks and as such this bombing was a legal act of self-defense: a preemptive
military attack.36 Thus, the use of Article 51 as
justification; there is clearly a precedent in American policy for using Article 51 to
justify the assassination of foreign leaders who act against the United States. Given the
current attitudes in Europe and at the UN General Assembly, however, it is very unlikely
that such an attack would be supported by other nationseven our allieson those
grounds. Nevertheless, the President possesses a strong legal precedent for launching an
attack on Iraq that results in the elimination of Hussein.

A third manner in
which the President could circumvent the terms of his own executive prohibition on
assassination is to narrowly construe Executive Order 12,333 as forbidding only the
specific planning of assassination of individual leaders.37 This manner was employed by the Administration of
President George H. W. Bush when it faced off against Manuel Noriega in 1989 and Saddam
Hussein in 1991. The interpretation provided then to President Bush by his advisors
in the Justice Department indicated that the while a President may not specifically plan
or approve the specific killing of a foreign leader, it is not illegal to authorize action
wherein the leaders death may be a result.38 The Justice Department further indicated that the President could
also legally issue an exception to the executive order, and thus target a specific
individual.39 This would require only that the
President make a finding that the proposed course of action against the individual is
important to the national security interests of the United States, and that he follow it
up with a proper report to Congress regarding the expenditure of funds

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in the execution of
the plan.40 If the President chose to classify this
finding, it could remain a state secret.41

In general, the key
way in which a President narrowly construes the executive order to avoid breaking it is
that he does not call the approved plan an assassination.42
Instead, under the principle of narrow construction, a President can declare he is
restoring the legitimate government or apprehending an international
terrorist. While critics may argue that narrow construction of the executive order
is merely putting a spin on the Presidents decision to have a leader assassinated,
it still allows for the objectives to be completed without the need for rewriting the
executive order. As noted earlier, this is perhaps the most lawful and therefore most
likely avenue that the current Bush Administration may be pursuing.

As a fourth option,
rather than seeking to manipulate the wording within the executive order, the President
possesses the constitutional power to strike it down and replace it with his own.43 Congress and the President possess the power to repeal or
amend executive orders and replace them with their own versions.44 Also within his power, a President may create a secret
exception to the ban on assassinations whenever he feels the previous loopholes do not
support the facts at hand.45 It is within the Presidents power
to conceal from the public the partial or total repeal of the executive order banning
assassinations.46 The President may not have to publish the
executive order repealing the assassination ban, because presumably it would not apply to
the general public, as it is limited to federal employees.47 If President Bush has already modified this executive
order with respect to the al Qaeda terrorists, it is only logical that he could secretly
revise it again to incorporate the circumstances of the present Iraqi situation.

What We Should
or Shouldnt Do

The popular argument
against replacing an explicit ban on assassinations with one that is more pliable is that
it may not be in the best interests of either the nation or the chief executive. Lawrence
J. Korb, an Assistant Secretary of Defense in the Reagan Administration, has argued that
lifting the executive order regarding Hussein would bring us down to his level
and violate international norms.48
Certainly the current executive order is well known and exists as a clear declaration of
US intentions. Its replacement with one that leaves international friend and foe alike
wondering how the United States will respond arguably may not be the best thing for
international stability. Proponents of scrapping the ban on assassinations cite this same
uncertainty as a reason for changing the executive order: our opponents, like Saddam
Hussein, the mullahs of Iran, and President Kim of North Korea, would be kept off-guard,
unsure of how or when the United States might strike.49

There have been some
considerable opinions that the United States should formally legislate in this area and
make it our official law that the United States does not allow the specific targeting of
foreign leaders. When a President bans assassinations by executive order, he is performing
a legislative function, cre-

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ating
presidential legislation.50
Congress does have the power to legislate in areas it feels the Presidents executive
order is insufficient or if it feels the President has misinterpreted the law on the
books.51 Congress possesses constitutional war powers as well as the power
of the purse to appropriate such actions. The President does have a responsibility not
only as Commander-in-Chief, but also as chief executive to faithfully carry
out the laws. A strict interpretation of assassination might tie the hands of the
President, however, perhaps forcing him to get a declaration of war by Congress every time
a covert mission poses risk to a foreign leader.

More so than
reflecting international norms, the executive order banning assassination as an instrument
of policy is premised on the correct belief that political murderthe
killing of leaders purely for their ideological beliefsis anathema to a nation
founded on the principles of freedom of speech, religion, and association. American
Presidents have adopted and continued this formal prohibition as a reflection of their
constituents belief that, unlike our totalitarian foes of past and present, this
nation does not wantonly execute persons on the mere basis of their political positions,
their membership in social or political parties, or their advocacy of policies unpopular
with the global vision of the United States. Americans and their leaders would like to
think that their government conducts its foreign policy in an ethical manner, that a sense
of fair play is always considered; the current executive order banning
assassination is one expression of this belief.

There are
circumstances, however, where it is permissible, and indeed absolutely necessary, to
deviate from this sacred national ethic in the interests of national security. The four
exceptions listed above exist as an implicit recognition that there are times when threats
to our basic freedoms of life and liberty are so great that we must set aside this core
value of fair play in our foreign affairs. The elimination of a hostile foreign leader,
when done within the framework of these exceptions, is a careful, deliberate action
providing these enemies with far more fair play consideration than they likely deserve.

Under the current
circumstances, assassination may prove to be a more frequent and necessary means of
countering the asymmetric threats our nation will continue to face. The new world order
created by the end of the Cold War, and punctuated by the impressive military victory of
the 1991 Persian Gulf War, finds the United States as the lone superpower, unchallenged
militarily. Rogue nations, like the members of the Axis of Evil, are opposed
to the United States, but for purposes of self-preservation are unwilling to confront the
United States with military forces they know will face certain destruction in a fixed
battle. As such, these nations are currently rushing to develop weapons of mass
destruction to ensure their existence, while they simultaneously arm and fund as proxy
forces numerous terrorist groups (such as al Qaeda, Hamas, and Hezbollah) to serve as
their own tools of foreign policy. The leaders of these rogue states perhaps believe that
by subcontracting out their foreign military operations to terrorists, they
can shield themselves from the repercussions of such actions. Terrorists are illegal
irregular combatants who violate international laws and murder innocent

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civilians; they can
and should be targeted. So too, then, should their hosts, paymasters, and commanders: the
leaders of these rogue states.

There is a basic
ethical difference between the immoral assassination of a foreign social or political
leader on the basis of pure ideological disagreement, and the justifiable targeting of
totalitarian dictators and fascist theocratic ruling counsels who directly threaten the
lives of American citizens. These individuals possess de facto command and control over
irregular quasi-military forces that are the front-line troops in the asymmetric
battleground of the 21st century. An absolute prohibition on the use of assassination
under any circumstances, on purely ethical grounds, ignores the realities of the current
threats the United States faces, and unnecessarily constrains the Presidents ability
to respond to them.

The current
executive order remains in place, as perhaps it should. It is a public statement that can
be pointed to when our international critics decry the unilateralism of US foreign policy.
The order is clear that the President alone makes such decisions regarding the possibility
of foreign assassination.52 Plausible deniability cannot
be employed under this order to shield the President from damaging actions, as was done in
the past: the buck stops with the chief executive.53 The executive order possesses loopholes, which must be carefully
scrutinized, lest they be abused. Yet it also provides a statement that the United States
is not as savage as it may be perceived to be. The loopholes require considerable detail
to be gotten around, yet they do give pause to foreign leaders who might consider
threatening the United States. They may be used, if, as in 1986, the President so wills
it.

In returning to the
hypothetical scenario which began this article, the President would be unlikely to
directly change the executive order in that particular instance. However, the President
may use the loopholes of protecting his forces or of apprehending a war
criminal to authorize actions against such a foreign leader that could result in his
death. The President has all the cards here. If a loophole to the current order is not
sufficient, he can write a new order. In the case of Saddam Hussein, if the President
decided to specifically target Hussein only, and did so through the issuance of a
classified exception to the executive order banning assassinations, it would likely pass
legal scrutiny.

Assassination, the
word no one wants to say in the same breath with foreign affairs, does exist as an option
in the arsenal of presidential constitutional authority. With the United States engaged in
a global war against terrorists and the nations who harbor them, we cannot afford to
overlook the possibility that a well-placed rifle shot, or properly targeted laser-guided
weapon, just might preclude the need for massing our forces on the borders of a hostile
rogue nation.

NOTES

1. Boyd M. Johnson,
Executive Order 12,333: The Permissibility of an American Assassination of a Foreign
Leader, 25 Cornell Intl L.J. 401, 435.